HKSAR v. Ip Ying Lung

CACC 281/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 281 OF 2015

(ON APPEAL FROM HCCC 341 OF 2014)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

Introduction

1.The applicant was convicted on his own plea on 3 August 2015 before Deputy Judge V Bokhary (“the Judge”) in the Court of First Instance of one count of trafficking in a dangerous drug, namely 132.5 grammes of a crystalline solid containing 126.49 grammes of methamphetamine hydrochloride, commonly known as “Ice”.  On the same day, he was sentenced to 8 years and 4 months’ imprisonment.

2.By a Notice of Application for Leave to Appeal against sentence filed on 27 August 2015, the applicant seeks leave to appeal against his sentence.

The facts of the case

3.On 4 May 2014, at about 12:30 am, the applicant was intercepted by two police officers when leaving his flat situated at Room 1718, 17/F, Po Man House, Oi Man Estate, Ho Man Tin (“the Flat”).  Upon a search of the Flat the following items were found :

(1)  10 packets of transparent re-sealable plastic bags each containing a substance, later found to be a total of 132.5 grammes of a crystalline solid containing 126.49 grammes of Ice, stored inside a biscuit tin in the applicant’s bedroom (“the Bedroom”);

(2)  a transparent re-sealable plastic bag containing a small amount of a substance (this is irrelevant to the charge); and

(3)  a small woven basket box containing 190 empty re-sealable plastic bags of varying sizes.

4.The applicant was also found to be in possession of HK$4,600.00 and two mobile telephones.  He was arrested.  Upon caution, he admitted that the dangerous drug found inside the Bedroom belonged to him and it had nothing to do with his parents and other family members.

5.In a subsequent video-recorded interview, the applicant further admitted that :

(1)  he bought the Ice, in four bags of 28 grammes each and two bags of 14 grammes each, from an acquaintance for HK$10,000.00;

(2)  the Ice was for his own consumption, and sometimes for sharing with friends in his home or a hotel;

(3)  he had the exclusive occupancy of the Bedroom and he would lock its door whenever he left the Flat; and

(4)  he divided the drugs into smaller packets and put them inside the re-sealable plastic bags, which he used for carrying miscellaneous items, for the purpose of consumption outside.

6.The estimated retail value of the Ice in question was HK$55,918.00.

Mitigation

7.In mitigation, it was submitted on the applicant’s behalf that :

(1)  he was 27 years of age and had a 7-year-old daughter (although he had remained single);

(2)  he had a conviction for burglary in 2004 but had no drug-related record;

(3)  he committed the present offence out of stupidity with a view to earning quick money to finance the medical expenses of his daughter (who required constant medical care) and his mother (who suffered from heart disease); and

(4)  he was very remorseful and his guilty plea served as the strongest mitigation.

8.A mitigation letter from the applicant’s employer was also submitted, in which the applicant was said to be hard-working.

9.Despite what the applicant had claimed in his video-recorded interview, his counsel at trial confirmed that there was no issue of self-consumption.

Reasons for Sentence

10.In sentencing the applicant, the Judge said that she had considered all the circumstances of the case, and adopted a starting point of 12 years and 6 months’ imprisonment.  By allowing him a one-third discount, the Judge reduced the sentence to 8 years and 4 months’ imprisonment.

Ground of appeal

11.The only ground of appeal advanced by Mr Jackson Poon, for the applicant before us but not below, is that the starting point adopted by the Judge was manifestly excessive.  Counsel relied on AG v Ching Kwok Hung [1991] 2 HKLR 125 which was applicable to the present case.  There, the Court of Appeal set out the tariff applicable to trafficking for quantities between 70 grammes and 300 grammes of Ice as 10 to 14 years’ imprisonment.  Mr Poon submitted that the drug in question, namely 126.49 grammes of Ice, that is, the net weight of the narcotic content, fell within the lower end of the applicable tariff.  In the absence of previous similar convictions, any international element or other aggravating factors, the appropriate starting point should be 11 years’ imprisonment.

Respondent’s submissions

12.The present application is not opposed by Ms Janice Cheuk (Ag) SPP, for the respondent.  She accepts that there were no aggravating features in the applicant’s circumstances, and by adopting a mathematical approach, a starting point in the region of 11 years’ imprisonment would appear to be appropriate.

Discussion

13.Plainly, the starting point of 12 years and 6 months’ imprisonment adopted by the Judge was manifestly excessive.  Having regard to the quantity of the drug in question, the starting point should be close to the lower end of the applicable tariff of 10 to 14 years’ imprisonment.  In our judgment, 11 years’ imprisonment is, in the overall circumstances of the present case, appropriate.  We agree that there were no aggravating features that would warrant an upward adjustment of the starting point.  The only meaningful mitigating factor is the applicant’s plea of guilty.  He should be entitled to one third discount.  The total length of sentence should therefore be reduced to 7 years and 4 months.

Conclusion

14.For these reasons, we grant leave to appeal, allow the appeal and substitute for the sentence of 8 years and 4 months’ imprisonment, a sentence of 7 years and 4 months.

Ms Janice Cheuk (Ag) SPP of Department of Justice, for the respondent

Mr Poon Chin Ping, Jackson, instructed by Director of Legal Aid, for the applicant